Software patent wars are killing innovation


ANALYSIS The software industry is rapidly tying itself up in red tape as claim meets counterclaim in patent suits blossoming all over the US.

The latest example is Microsoft's co-founder, Paul Allen, who has launched into litigation against Apple, Google, eBay, Facebook, Yahoo, YouTube and five other companies. Apple has already had more than its fair share of court actions especially with Nokia and HTC. Oracle is gunning for Google. Every day brings some new accusation.

In almost every case, it is software nuances at the root of the problem. In some of the Apple cases, it seems that hand gestures are involved.

On 20 January 2009, Apple was awarded patent number 7,479,949. The patent covered the use of multi-touch screen gestures, such as pinch, swipe and rotation. The brief description ran to over 1,800 words. The details, with diagrams, added another 370 pages.

Apple seems to be in court a lot over interface subtleties. The company has every right to protect its legally lodged patents, but the phrasing often associated with graphical user interfaces is they are intuitive.

It follows then that if an interface is tied up in patents by one company, everyone else has to pay so their users can do what comes naturally. So, thousands of dollars are spent on litigation and, to limit costs, often the accused company will launch its own counter-action, tying up more money and time.

There was a similar spat of litigation 20 years ago. Apple was suing Microsoft over Windows 3.11, whilst Lotus and Borland, two office productivity software manufacturers, were battling over spreadsheet designs.

In both cases it was the "look and feel" that was the issue. They were foolish arguments because neither was a clone of the other. They looked similar but that was all.

The point was, while Borland and Lotus were in court, Microsoft got on with improving its software and stole the market from both companies. A few years later it had effectively killed them off.

All the fighting and expense was ultimately a distraction from innovating which is precisely what is happening today.

It seems a ridiculous situation from the European side of the Atlantic. Over here there is no such thing as a patent for methods of software operation. Code is protected byte for byte, but the application or operating system is treated as an entity.

Clone a program in Europe and you will be in trouble, but feel free to produce something that looks and feels similar.

The problem is the big market is the US and, for European software companies to survive, they have to comply with US Law. SAP is being sued at the moment but it's arguable that in a purely European environment it would not be bogged down but free to improve its products. We now suffer from US laws by proxy.

It will get worse with the rise of companies whose soul income comes from protecting patents. Already, they are circling like wolves looking for weaknesses.

Recently, Apple was taken to task by VirnetX, guardians of the patents filed by the Science Application International Corporation (SAIC) in its work with the US Department of Defence. VirnetX knew it was onto a potential winner, having won a very similar case against Microsoft a few months earlier in the same court with the same judge.

The reason VirnetX had done this was because there seemed to be no pan American standards for the judgements given. It is a lottery over which state court and which judge presides.

Maybe its time for the courts to step in, sort things out and patent their own hand gestures against the crackpot cases.